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Soda Ban Ruling a Devastating Defeat for Mayor Bloomberg

For all the public irritation over New York City Mayor Michael
Bloomberg’s high-handed attempt to ban large-size sugary
drinks, most New Yorkers were expecting it to pass into effect
Tuesday as planned. Although opponents had gone to court in an
effort to block the measure, the press had not paid much attention
to their challenge.

Judge Tingling struck
down the soda ban in a sweeping opinion that does everything but
hand Mayor Poppins his umbrella and carpetbag.

Public health activists were already pursuing plans to use the
ban as an entering wedge to get laws passed in other cities and
states restricting food and beverage choices. “I think
you’re not going to see a lot of push back here,”
predicted Bloomberg himself.

And then they were struck by a sudden Tingling. Judge Milton
Tingling of the state trial-level court in Manhattan, that is.

On Monday, Judge Tingling struck down the soda ban in a sweeping
opinion that does everything but hand Mayor Poppins his umbrella
and carpetbag. This wasn’t just a temporary restraining order
putting the regulation on hold for a few weeks. The judge struck
down the ban permanently both on the merits (“fraught with
arbitrary and capricious consequences”) and as overstepping
the rightful legal powers of the New York City Department of Health
— meaning that the board cannot go back and reissue the
regulations on its own authority even if it should develop a better
factual basis for them.

Arbitrary and capricious. The ban would have
covered some but not other food establishments, some but not other
highly sweet or fattening drinks (the “latte
exception”), and the health department had resorted to
“suspect grounds” in distinguishing the two. “The
simple reading of the rule leads to the earlier acknowledged uneven
enforcement even within a particular city block, much less the city
as a whole … the loopholes in this rule effectively defeat the
stated purpose of the rule,” wrote the judge.

Beyond the agency’s powers. Lawyers for
the Department of Health claimed that it was an agency with broad
power to issue edicts and decrees protecting public health, and
pointed to old cases in which courts had upheld its power to act on
its own. Judge Tingling slapped down this dangerous claim. Just
because an agency may possess sweeping emergency powers
— to quarantine innocent persons during a raging epidemic,
for example — does not mean it can assert similar powers in
situations that are not emergencies. It’s a crucial
point.

Separation of powers. When Mayor Bloomberg
wanted the soda ban, he went not to the New York City Council
— which had indeed debated similar ideas in the past —
but to a city Department of Health staffed with his own appointees.
Judge Tingling blew the whistle on this infringement on the
principle of separation of powers. The soda ban was in essence a
venture into legislation, and as such needed to be taken up, if at
all, by the legislative branch of government. Again, the
implications are significant, since Bloomberg is hardly alone in
his efforts to bypass fractious legislators and make law instead by
executive edict.

The city administration vows to appeal, and it almost has to,
for the sake of the reputation of the mayor and his public health
crew. For them, the biggest reproach in the decision isn’t in
being found to have gotten the facts wrong, it’s being found
to have violated the law.

And if anyone is expected to know and play by the rules,
it’s a nanny.